[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

________________________
ELEVENTH CIRCUIT
JULY 06, 2010
JOHN LEY
CLERK

No. 09-16108
Non-Argument Calendar
________________________
D. C. Docket No. 09-60421-CV-WJZ
BILLY JAMES LEWIS, JR.,

Plaintiff-Appellant,
versus
JAMES BARNICK,
FELIPE RODRIGUEZ,
STEVEN BOLGER,
HOLLYWOOD POLICE DEPT.,
CITY OF HOLLYWOOD, FLORIDA,

Defendants-Appellees.

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Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 6, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
Billy James Lewis, Jr., a Florida state prisoner, appeals the district courts
dismissal of his pro se civil rights complaint alleging that Florida police officers
violated his constitutional rights during his arrest in 2004. For the following
reasons, we vacate and remand.
On March 13, 2009, Lewis filed a civil rights action alleging constitutional
violations and conspiracy under 42 U.S.C. 1983, and 1985(3) in connection
with his arrest in April 2004. He later filed an amended complaint providing
further detail for these allegations and adding state law claims.1
The magistrate judge recommended dismissing the complaint under 28
U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could be
granted because the complaint was not filed within the four-year statute of
limitations. Although the magistrate judge considered Floridas tolling provisions,
the judge concluded that Lewiss status as a prisoner did not fall within the
provision.
Lewis filed objections to the recommendation, in which he argued that he
had filed a complaint in 2007 by placing the complaint in the prison mail system,

On appeal, Lewis proffers no argument regarding the dismissal of these state law

claims.
2

and eighteen months later, when he had not receive a response from the court, he
filed the instant complaint. He argued that the 2007 complaint, which raised the
same constitutional claims as the 2009 complaint, tolled the limitations period, but
he did not clearly assert that the instant complaint served as an amendment to the
2007 complaint. It does not appear from the record that the district court docketed
the 2007 complaint.
The district court adopted the recommendation of the magistrate judge and
dismissed the complaint without addressing Lewiss claim that he filed a complaint
in 2007.
On appeal, Lewis raises two issues. First, he argues that the district court
erred in not applying the prison mailbox rule, and dismissing his 1983
complaint as barred by the statute of limitations. Second, Lewis argues that the
district court erred in finding that Floridas tolling statute, Florida Statute 95.051,
did not toll the statutory period.
A court shall dismiss a case filed in forma pauperis if the court determines
that the complaint fails to state a claim upon which relief may be granted. 28
U.S.C. 1915(e)(2)(B)(ii). A district courts dismissal of a complaint for failure to
state a claim is reviewed de novo, viewing the allegations in the complaint as
true. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

Section 1983 claims are governed by the forum states residual personal
injury statute of limitations, which in Florida is four years. City of Hialeah v.
Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002). Thus, [p]laintiffs must bring a
section 1983 claim arising in Florida within four years of the alleged unlawful
[conduct]. Id. at 1103. To dismiss a prisoners complaint as time-barred prior to
service, it must appear beyond a doubt from the complaint itself that the prisoner
can prove no set of facts which would avoid a statute of limitations bar. Hughes
v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (internal quotations omitted). When
a pro se prisoner files a complaint under 1983, the date of filing shall be that of
delivery to prison officials . . . for the purpose of ascertaining timeliness. Garvey
v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (emphasis omitted).
Lewiss 1983 complaint filed on March 13, 2009, was untimely as to the
2004 events. When it adopted the magistrate judges recommendation, however,
the district court failed to consider or address the status of the 2007 complaint.
The 2007 complaint would be timely under the mailbox rule. Although Lewis
did not explicitly argue that the 2009 complaint is an amendment of the 2007
complaint, we must consider Lewiss pro se status and the fact that he submitted a
copy of the 2007 complaint bearing the prison mail stamp. The failure of the
district court to docket the 2007 complaint should not be held against Lewis, and

the district courts failure to address the status of the 2007 complaint before
dismissing the 2009 complaint is questionable. See, e.g., Mederos v. United States,
218 F.3d 1252, 1254 (11th Cir. 2000) (holding that pro se prisoners second
motion to vacate under 28 U.S.C. 2255 was an amendment to the first 2255
motion where prisoner acted diligently to correct defect in initial pleading).2
Accordingly, we vacate and remand for the district court to (1) determine the status
of the 2007 complaint, and (2) address its impact, if any, on the current action.3
VACATED and REMANDED.

We note that Lewis waited eighteen months after he filed the 2007 complaint to file
again and he does not allege that he attempted to learn the status of his 2007 complaint during
that time. In fact, the record does not show whether the 2007 complaint was ever docketed. But
these are factual issues the district court can address on remand.
3

Because we conclude remand is necessary we need not address whether Fla. Stat.
95.051 tolled the limitations period.
5